Ethics, Health, and the Law
Lance Gable
Assistant Professor of Law
Wayne State University Law School
Ethics, Health and the Law
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Approaches to ethics
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Ethics, Health, and the Law
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Metaethics
Normative Ethics
Rules and Rights
Casuistry
Bioethics
Public Health Ethics
Professional Ethics
Environmental Ethics
Specific examples
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A case study
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After the March 2011 earthquake and
tsunami in Japan, officials from the
Fukushima Daichi nuclear plant were
faced with containing a nuclear release.
Workers would need to enter the area,
which had high levels of radiation, to try
to stop the meltdown of the reactors
from worsening. Worker will face
immediate and long-term health risks.
What is the ethical thing to do in this
situation?
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What is Ethics?
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Approaches to ethics
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Metaethics
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Normative Ethics
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Rules and Rights
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Casuistry
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What is Ethics?
The study of ethical principles.
 Values: judgments of preference
 Morals: judgment of the goodness of
action of responsible agents, their
general policies, or traits of character
 Ethical principles: Attempt to articulate
and justify principles that serve as guides
for evaluating actions or policies; or to
assist comprehension or judgment
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Metaethics
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What are the sources of ethics?
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How do we know what is ethical?
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Metaethics
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What is the source of ethics?
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Religion – Divine Law
Secular sources – Natural Law; Social Contract
Relativist – One’s culture, personal preferences, actual social
contract
How do we know what is ethical?
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Religious – revelation, scriptures, tradition, experience
Secular – reason, experience/observation, intuition, social
agreement or contract
Relativist – one’s own thoughts
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Normative Ethics
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Consequentialism
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Deontology
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Areataic (Virtue)
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Normative Ethics
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Consequentialist – Utility ethics…the
consequences and utility of an act is
what matters.
Deontological – Principles and reasons
for the act matter, not the
consequences.
Areataic – Virtue ethics…the qualities of
the actor is what matters.
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Utilitarianism
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Classical Utilitarianism – based upon the
principle of utility (actions are right in the
proportion as they tend to promote happiness;
wrong as they tend to promote the reverse of
happiness).
Positive value over disvalue – will go for the
most value or least disvalue. In other words
“an act is morally right if and only if it
maximizes the good” (cost-benefit analysis).
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Utilitarianism
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1) What or whose values are the most
important? Happiness, pleasure, economics.
Mill assigns values to “pleasures”.
Who does this balancing? A benevolent
spectator performs the calculus of pleasure
and pain. Perhaps there is some snobbery in
Mill’s conception of utilitarianism.
2) How to balance equally valuable
considerations? What to do when pleasure for
one (or many) results in pain for others?
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Deontology: Kantianism
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Rational creatures
possess “autonomous,
self-legislating will” which
confers intrinsic worth
and dignity
Moral rules are objective
truths that have their
source in the rational
nature of human beings.
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Kantianism: the categorical imperative
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Act only on that maxim which you can at
the same time will that it should become
a universal law. (“do unto others as you
would have them do unto you.”)
In other words “Always act so as to treat
humanity, either yourself or others,
always as an end and never as only a
means.”
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Principlism – Beauchamp and
Childress
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Autonomy
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Beneficence
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Non-maleficence
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Justice
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Justice
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Ethical decisions should
be made in the original
position, i.e. in a veil of
ignorance.
Individuals behind the
veil will make good
decisions.
John Rawls, A Theory of
Justice (1971).
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Principles of Justice
Each person has an equal right to the most extensive
liberty compatible with a like liberty interest for all
Inequalities must be arbitrary unless it is reasonable
to expect that the inequalities will work out for
everyone’s advantage (difference principle) Social
and economic inequalities are to be arranged so
that:
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a) offices and positions must be open to everyone under
conditions of fair equality of opportunity
b) they are to be of the greatest benefit to the leastadvantaged members of society (the difference principle).
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Areataic Ethics: Virtue ethics
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Virtues are states of
character concerned with
choice; examples include
courage, temperance and
justice.
Virtues can derive from
professional, religious, or
secular sources.
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Normative Ethics: summary
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Utilitarianism: An action is right if and only if the
action will produce the best consequences as
compared to the alternative actions that could be
undertaken by the agent.
Deontology: An action is right if and only if the
action is either (a) required by a moral duty, or (b)
allowed by a moral permission, and not (c)
forbidden by a moral prohibition.
Virtue Ethics: An action is right if and only if the
action is one which a virtuous moral agent would
characteristically perform under the circumstances.
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Rules and Rights
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Rules – duties we owe to others
(Everyone should refrain from polluting
the water supply; all employers should
limit/eliminate hazardous substances in
the workplace)
Rights – duties owed to us (All people
have the right to access clean water; all
workers have the right to work without
being exposed to hazardous substances)
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What is the Relationship Between
Law and Ethics?
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Ethics informs law
Ethics supplements law
Ethics is necessary for the practical interpretation
of law
Ethics and law may conflict
Rules and Rights
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How rigidly do rules apply?
No Rules Apply
Antinomianism
Situationalism (rules of thumb or guidelines)
Rules of practice
Legalism
Rules Apply Rigidly
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Rules and Rights
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Codes of Ethics
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Hippocratic oath
AMA Code
Ten Commandments
Human Rights Treaties
CIOMS Research Guidelines
Nuremburg Code
US Bill of Rights
ABIH Code of Ethics
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Casuistry
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Using individual case examples to discern
ethical pronouncements. A case-based
comparison system allows ethical
principles to emerge.
This is a bottom-up rather than top-down
approach.
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Other approaches to ethics
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Liberal Individualism: individuals have
rights that protect them from intrusion,
especially from the government.
Communitarianism: ethical actions are
those that place the good of the
community above those of specific
individuals.
Critical ethics: feminist and race theories.
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What is Ethics?
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Ethics, Health and the Law
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Bioethics
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Public Health Ethics
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Legal Ethics
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Environmental Health Ethics
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What is Bioethics?
The study of ethical principles in medical
and biological sciences.
Principles of bioethics:
• Respect for persons
• Beneficence
• Non-maleficence
• Justice
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What are Public Health Ethics?
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The use of ethical principles to evaluate
moral dilemmas that arise from efforts to
improve population health
The use of ethical principles to assure
conditions in which people can be healthy
Public Health Ethics
General Moral Considerations
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Producing benefits
Avoiding, preventing, and removing harms
Producing the maximal balance of benefits over
harms and costs (utility)
Distributing benefits and burdens fairly
(distributive justice)
Ensuring public participation (procedural justice)
Public Health Ethics
General Moral Considerations
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Respecting autonomy in choices and actions
Protecting privacy and confidentiality
Keeping promises and commitments
Disclosing information as well as speaking
honestly and truthfully (transparency)
Building and maintaining trust
Public Health Ethics
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Weighing of general moral considerations
within a specific circumstance.
There is no universal agreement on ethical
outcomes.
Resolving Ethical Conflicts
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Effectiveness
Proportionality
Necessity
Least infringement
Public justification
What are Professional Ethics?
The study and application of ethical
principles in a profession.
Some principles of professional ethics:
• Adequate professional conduct
• Privacy/Confidentiality
• Business practices
• Justice
• Veracity/truth-telling
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What are Environmental Health
Ethics?
The study of ethical principles in
environmental health sciences.
Challenges:
• Balancing risk tradeoffs
• Enacting just policies
• Allocating resources
• Protecting human rights
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What are Industrial Health Ethics?
The study and application of ethical
principles in industrial health.
Combines ethical considerations from all of
the above models
Industrial Hygiene: Science and art devoted to the
anticipation, recognition, evaluation, prevention, and
control of those environmental factors or stresses
arising in or from the workplace which may cause
sickness, impaired health and well being, or significant
discomfort among workers or among citizens of the
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community.
Industrial Hygiene Ethics
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Specific examples
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Standard setting and the precautionary
principle
Conflicts between industrial and health
objectives
Confidentiality of person health information
International ethics and distributive justice
Industrial hygiene ethics in the legal system
Relevant codes of ethics
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Standard setting and the
precautionary principle
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Industrial health standards are to protect
“most healthy workers.”
Precautionary principle: when an activity
raises threats of harm to the
environment or human health,
precautionary measures should be taken
even if some cause-and-effect
relationships are not fully established
scientifically
What about setting standards for new
materials that are not yet regulated?
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Conflicts between institutional and
health objectives
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Businesses have profit motives and want
to contain costs
Institutions may be seeking energy
reductions
Institutions may wish to protect
intellectual property or contain negative
attention from health risks/incidents
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Conflicts related to professional
activities
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Industrial hygiene professionals may
work for multiple clients with conflicting
goals
Industrial hygiene professionals may
work as consultants beyond their main
employer
Industrial hygiene professionals may
serve as experts in legal proceedings
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Confidentiality of personal health
information
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Sensitive personal health information
may be revealed during investigations
How should this information be
protected?
What sorts of conflicts and ethical
concerns may arise?
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International ethics and distributive
justice
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Global industries may have to comply
with different regulatory standards in
different countries. How should this
affect decisions about health and safety
standards?
What role do industrial hygiene
professionals have in ensuring that
workers in countries with less stringent
protections are not exposed to additional
health risks?
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Industrial Hygiene Ethics in the Legal
System
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Compliance with law
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Reporting requirements
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Expert witnesses
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Codes of Ethics
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Professional codes
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AMA Code of Ethics
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APHA Code of Ethics
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ABIH Code of Ethics
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ICOH Code of Ethics
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American Board of Industrial Hygiene:
Code of Ethics
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Who is covered? Certified ABIH
professionals and candidates for
certification
Minimum ethical standards of behavior
Responsibilities to ABIH, the profession
and the public
Responsibilities to clients, employers,
employees, and the public
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Responsibilities to ABIH, the
profession, and the public
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1. Comply with laws, regulations, policies and ethical standards
governing professional practice of industrial hygiene and related
activities.
2. Provide accurate and truthful representations concerning all
certification and recertification information.
3. Maintain the security of ABIH examination information and
materials, including the prevention of unauthorized disclosures of
test information.
4. Cooperate with ABIH concerning ethics matters and the
collection of information related to an ethics matter.
5. Report apparent violations of the ethics code by certificants and
candidates upon a reasonable and clear factual basis.
6. Refrain from public behavior that is clearly in violation of
professional, ethical or legal standards.
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Responsibilities to clients, employers,
employees, and the public
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A. Education, experience, competency and performance of
professional services.
1. Deliver competent services with objective and independent
professional judgment in decision-making.
2. Recognize the limitations of one’s professional ability and
provide services only when qualified. The certificant/candidate is
responsible for determining the limits of his/her own professional
abilities based on education, knowledge, skills, practice experience
and other relevant considerations.
3. Make a reasonable effort to provide appropriate professional
referrals when unable to provide competent professional
assistance.
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Responsibilities to clients, employers,
employees, and the public
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4. Maintain and respect the confidentiality of sensitive information
obtained in the course of professional activities unless: the
information is reasonably understood to pertain to unlawful
activity; a court or governmental agency lawfully directs the
release of the information; the client or the employer expressly
authorizes the release of specific information; or, the failure to
release such information would likely result in death or serious
physical harm to employees and/or the public.
5. Properly use professional credentials, and provide truthful and
accurate representations concerning education, experience,
competency and the performance of services.
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Responsibilities to clients, employers,
employees, and the public
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6. Provide truthful and accurate representations to the public in
advertising, public statements or representations, and in the
preparation of estimates concerning costs, services and expected
results.
7. Recognize and respect the intellectual property rights of others
and act in an accurate, truthful and complete manner, including
activities related to professional work and research.
8. Affix or authorize the use of one’s ABIH seal, stamp or
signature only when the document is prepared by the
certificant/candidate or someone under his/her direction and
control.
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Responsibilities to clients, employers,
employees, and the public
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B. Conflict of interest and appearance of impropriety.
1. Disclose to clients or employers significant circumstances that could be
construed as a conflict of interest or an appearance of impropriety.
2. Avoid conduct that could cause a conflict of interest with a client,
employer, employee or the public.
3. Assure that a conflict of interest does not compromise legitimate
interests of a client, employer, employee or the public and does not
influence or interfere with professional judgments.
4. Refrain from offering or accepting significant payments, gifts or other
forms of compensation or benefits in order to secure work or that are
intended to influence professional judgment.
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Responsibilities to clients, employers,
employees, and the public
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C. Public health and safety.
1. Follow appropriate health and safety
procedures, in the course of performing
professional duties, to protect clients,
employers, employees and the public from
conditions where injury and damage are
reasonably foreseeable.
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Canons of Ethics: previous industrial
hygiene ethical guidance
1. Practice their profession following recognized scientific principles
with the realization that the lives, health and well-being of people
may depend upon their professional judgment and that they are
obligated to protect the health and well-being of people.
2. Counsel affected parties factually regarding potential health risks
and precautions necessary to avoid adverse health effects.
3. Keep confidential personal and business information obtained
during the exercise of industrial hygiene activities, except when
required by law or overriding health and safety considerations.
4. Avoid circumstances where a compromise of professional
judgment or conflict of interest may arise.
5. Perform services only in the areas of their competence.
6. Act responsibly to uphold the integrity of the profession.
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ICOH Code of Ethics
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Much more detailed set of substantive
guidance: 26 principles
More focus in specific activities like
surveillance, prompt action, health promotion,
etc.
Contrast language related to protecting trade
secrets: IH professionals “must not withhold
information necessary to protect the safety or
health of worker or the community.”
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